Is this a rock or an island? The tiny differences that could define a region

The East and South China Seas are home to hundreds of islands, islets, reefs, shoals and rocks. Under international law, these tiny geographical features have the potential to change the power balance in one of the world’s most hotly contested regions. Keri Phillips reports on the diplomatic, legal and military games China is playing on the high seas.

The East and South China Seas are marginal seas, enclosed by archipelagos, peninsulas and islands. Both the South China Sea and the smaller East China Sea wash up against South Korea, Japan, Taiwan, the Philippines, Malaysia, Brunei, Vietnam and, most significantly, China. All these countries claim territorial rights to mostly uninhabitable scraps of land in the China Seas. Since its leadership change in 2012, China has begun to assert its claims increasingly vigorously, leading to confrontation, sometimes physical, with its neighbours.

There are six parties that make claims in the South China Sea and none of them have particularly strong claims in terms of international law; all of their cases have significant weaknesses. So the political will is not there at the moment to take this dispute to a body like the International Court of Justice, which could make a ruling on the sovereignty issue.’

Dr Ian Storey, Editor, Contemporary Southeast Asia

More than national pride is at stake. Waters off the coast of each country have long been the domain of local fishermen and nearly one third of the world’s shipping passes through these seas. Moreover, it is believed that huge gas and oil reserves lie beneath the seabed. In June, China sent four more oil rigs into the South China Sea.

To make sense of these territorial claims, it is important to understand the geography of the contested land features and how specific definitions play into rights under international law.

‘The South China Sea is characterised by a complex coastal geography of small islands, atolls, shoals, coral reefs, et cetera—roughly around 200—not all of which are islands,’ explains Dr Ian Storey, a senior fellow at the Institute of Southeast Asian Studies in Singapore. ‘Technically, an island under international law must be above sea level at all times and capable of human habitation. So roughly, of the disputed islands in the south, the Spratly Islands, around 50 are actually islands and the rest are rocks.’

These islands and rocks have no intrinsic value and very few of them could sustain human life. In the South China Sea, the recent focus has been on two island groups—the Spratlys and the Paracels—­ although in April 2012 there was also a standoff between China and the Philippines over Scarborough Shoal, a feature claimed by both sides. China claims Scarborough Shoal is an island, while the Philippines maintain it is merely a rock. If the Scarborough Shoal is an island, it would confer an exclusive economic zone (EEZ) on the country that can claim sovereignty. Within an EEZ, the state has full rights to all natural resources for 200 nautical miles around.

‘If they're only rocks, they're only allowed a 12 nautical mile limit,’ says Stephanie Kleine-Ahlbrandt, the director of Asia-Pacific programs at the US Institute of Peace. ‘So that's why the Philippines would argue they are rocks. If they were to be, for example, decided to be Chinese, then it would give China only a 12 nautical mile limit. China claims the Scarborough Shoal as an island, part of its Macclesfield Bank claim, but there are a couple of problems with that argument. Scarborough Shoal is actually quite a distance from Macclesfield Bank, and under international law Macclesfield Bank may not be capable of being subject to a claim of sovereignty because it's actually completely submerged.

‘So you see, the type of feature that it is determines how much territorial waters it generates and that, in and of itself, shows who can fish in it. So that's why it's important to figure out the nature of the feature, to find out whether it's an island—can it sustain life, is it submerged, or is it a rock?’

These have different implications in international law, according to Dr Storey.

‘Well, under international law one of the definitions of an island is a feature that is capable of sustaining human habitation,’ he says, ‘but the 1982 Convention on the Law of the Sea doesn't really go on to explain what that means or provide a more thorough definition. One would expect that an island that is capable of sustaining human habitation will have vegetation and fresh water, and actually that's very few of the features in the Spratly Islands.’

‘All of the claimants except Brunei have occupied a number of features in the Spratly Islands in order to bolster their sovereignty claims. They've built structures over these islands and garrisoned troops on some of these features. Now, it varies depending on the size of the feature. Some of the islands are relatively large, so they've been able to build airstrips and barracks and even schools on some of the islands. The smaller ones, the atolls, they tend to build a smaller structure over the top of it and garrison maybe half a dozen or less troops.’

Although control of territorial waters and the fish and other natural resources they contain became the subject of international discussions early in the 20th century, things got serious in a legal sense only in the 1950s and '60s, when a series of UN-sponsored conferences developed the Convention on the Law of the Sea, known as UNCLOS. The 200 nautical mile exclusive economic zone was formally adopted in the 1982 UNCLOS. The convention came into force in 1994 and all the countries with claims in the China Seas are signatories, including China.

However, China has refused to participate in a United Nations arbitration process over another territorial conflict with the Philippines. In 2013, the Philippines submitted a formal case for UN arbitration under the 1982 UNCLOS at The Hague, arguing that China occupies only reefs and rocks in the Spratlys—not islands that would qualify for exclusive economic zones. Although the panel of senior international judges cannot rule on the sovereignty of the islands, it can provide rulings about the nature of rock formations, with implications for any territorial claims under the convention. Despite the international laws governing disputed territories and international courts to settle competing claims, the South China Sea disputes remain unresolved.

‘Each of the claimants has used the UN Convention on the Law of the Sea to try and bolster its claims because they say that these islands lie within their exclusive economic zones,’ says Dr Storey. ‘Now, in fact, under UNCLOS, just because a feature lies in your exclusive economic zone does not mean that it's your sovereign territory. If you can prove it is your sovereign territory, however, it gives you economic rights—a 200 nautical mile exclusive zone around the island or feature.’

‘It's important to note that UNCLOS cannot be used to resolve this problem. UNCLOS can make adjudications on maritime boundaries and fishing disputes, but it is not designed to resolve the issue of sovereignty. That could only be resolved at the International Court of Justice in The Hague. There are six parties that make claims in the South China Sea and none of them have particularly strong claims in terms of international law; all of their cases have significant weaknesses. So the political will is not there at the moment to take this dispute to a body like the International Court of Justice, which could make a ruling on the sovereignty issue.’

Proving sovereignty is tricky, with some claims going back hundreds of years. China bases its claims on the grounds of discovery and usage by mariners going back to the 2nd century BC. The Vietnamese claims go back to roughly the 16th-17th century. The claims of Malaysia, Brunei and the Philippines date only to the 20th century: the Philippines made its claims in 1978, Malaysia in 1983 and Brunei in 1984. However, under international law, the issue of discovery and occupation are not really that important. The most important aspect is effective administration of the islands. China’s claim is marked by a U-shaped nine-dash line, based on an 11-dash line created by the nationalist Chinese government in 1947. In 1949, two dashes were taken out to recognise Vietnamese sovereignty over the Gulf of Tonkin.

‘Our issue with China is that China has this concept of nine-dash line, which claims almost 80 per cent of all land features and waters in the South China Sea,’ says Rommel Banlaoi, from the Philippine Institute for Peace, Violence and Terrorism Research. ‘Most of the areas being claimed by the Philippines belong to China's claim within its nine-dash line principle. We also have contested claims with Taiwan, whose claim is identical with the People's Republic of China, but because Taiwan is a democracy we have no big problem with Taiwan, because as a democratic political entity we are confident that the Philippine government can handle its disputes with Taiwan peacefully.’

‘We also have conflicting claims with Malaysia and Brunei, but we are very confident also that we will be able to resolve our dispute peacefully in the context of ASEAN, where peaceful management of disputes is upheld. So that's why our greatest challenge right now is China, because of our differences in political systems and at the same time asymmetry in terms of power and size.

The disputes in the much smaller East China Sea involve China, Taiwan, Japan and South Korea. China and South Korea have a dispute over Socotra Rock, a submerged reef on which South Korea has constructed a scientific research station. While neither country claims the rock as territory, China has objected to Korean activities there as a breach of its exclusive economic zone rights.

Japan and China’s relationship with the contested Senkaku or Diaoyu Islands is complicated. The Japanese government formally annexed the islands in 1895. Since then, they have remained uninhabited, apart from a brief attempt to establish a privately owned fish processing plant in the first half of the 20th century. The islands came under US government control in 1945 when the surrender of Japan ended World War II. They were returned to Japanese control in 1972, although the Taiwanese and Chinese governments also declared a claim at the same time.

In May 2012, the Japanese family that owns four of the five rocky islets announced that it had agreed to sell three to the Tokyo metropolitan government, whose governor is a hawkish nationalist. However, by December 2012 the Japanese central government had bought them, prompting a huge protest flotilla of Taiwanese fishing boats to set sail to the area. In April 2013, Japan and Taiwan signed a bilateral fisheries pact allowing Taiwanese trawlers to operate in part of Japan's exclusive economic zone near the islands, ending their decades-long dispute over fishing rights. However, last November, China declared an air defence identification zone over the islands. Japan, South Korea and the US responded with unannounced military flights, while South Korea announced the expansion of its air defence identification zone into the area, overlapping the zones of Japan and China.

‘The Chinese and Japanese had agreed many decades ago to shelve the dispute,’ says Stephanie Kleine-Ahlbrandt. ‘High level leaders on the Chinese and Japanese side were able to do that, but the Chinese took advantage of the Japanese announcement that they were purchasing the islands to really change the status quo in China's favour, because China feels that the balance of power has shifted in the relationship and they weren't necessarily profiting anymore from the shelving of the dispute.’

Since the confrontation with Japan in the East China Sea last year, China has continued to expand its footprint in the South China Sea, moving sand onto reefs and shoals to create several new islands in the Spratly group and shifting a giant floating oil drilling rig into waters near the Paracel Islands, 120 nautical miles from the coast of Vietnam and within its 200 nautical mile EEZ. The island building provoked protests from Vietnam and the Philippines, while the deployment of the oil rig was followed by violent anti-Chinese demonstrations in Vietnam and multiple boat ramming incidents near the rig involving fishing boats on both sides, which resulted in the sinking of a Vietnamese boat.

Recent attempts by ASEAN to find new ways of resolving the overlapping claims and calls from the G7 to pursue settlement through international law, not force, appear doomed in the face of what appears to be China’s determination to assert its territorial sovereignty in the China seas. There is no impartial, legally binding forum in which all parties can test their overlapping claims and China’s greater military and political clout will almost inevitably lead to its increasing dominance in what it plainly regards as its own waters.

This article was first published on 10/12/2013 and updated on 24/07/2014. Find out more at Rear Vision.

Comments (4)

Oliver :

11 Dec 2013 4:10:04pm

This is war time.The British can now illustriously sent military assistance without HM country being threatened by attacks, instead Canada faces off tougher fight with Russia. We are at war. This is war time.There was peace in the region post WW2 until China got rich and start this war.Germany and Japan did the same thing in the 1930s in the lead up to WW2.Britain was in denial(like the A$EAN leaders bribed by China= British aristocrats blissfully naive) and the US then was very reluctant( Japan had to Pearl Harbor its hard #$%$).Similar circumstances is in place, only this time Britain is no longer per-occupied with defending itself and can commit illustriously to any combat missions in Australia's defense and interest.The US, ironically this time around, have Japan to obliged. US homeland politics suffer when US Foreign Policy is tied into a knot because of China. You must understand, that this is an election nightmare, or a re-election political suicide. You must then understand American pscyhe when choosing leader, while China chooses that will last a generation, the Americans choose in the moment. And besides, the US owes China more than a trillion $ directly and several Trillions $ more indirectly. The quickest way to forget the debt and loans is to cancel out the lender/loan shark. Have a contract out on him and Whack 'em as the Italian businessmen would say.We are at war. Chinese invasion is real and its naval ships are inside Philippine sovereign territory. For all those years Filipinos busy killing Filipinos, they now have the real war at our doorstep. This is bigger than each citizen's ideology and political inclination. If the country still can not figure out what is happening and the consequences in its outcomes, then they truly should be practicing to speak Mandarin..now!!

interfaceache :

12 Dec 2013 6:02:58pm

Dear Oliver; I would say take a pill, in order to calm down, but judging by your diatribe I fear that you may have been slipped a neurological excitatory substance of some sort, or inadvertently sipped the Kool Aid. As throughout its hideous 237 year history of unremitting aggression, genocide and violence, the USA, not China, is the aggressor here. The proposition that the most violent and murderous force in history will abjure its unique and perpetual role as the 'Shining City on the Hill', the very symbol of God's Kingdom on Earth, and its Divinely ordained 'Exceptionalism' and allow the world to be economically dominated by a bunch of goddammed Godless Asiatics is ludicrous. That the sorry rabble of the Filipino hereditary ruling caste, as useless and rapacious a bunch of talentless kleptomaniacs as one could find anywhere outside any other US stooge state, has been inveigled into the USA's plans to 'bring China down', is quite sad, really. You'd imagine that there might be some collective memory of the US genocide against the Filipinos, where 100,000 to 400,000 were slaughtered during the bloodthirsty anti-insurgency war at the turn of the 19th to 20th centuries, but, in fact, it was only peasants slaughtered, tortured, mutilated and otherwise given lessons in 'Western moral values', and the compradore elites swiftly switched allegiance from the Spanish overlord to the Yankee Master. Their descendants are making a big mistake tying themselves to the crumbling Moloch.

Henry Winn :

13 Dec 2013 3:53:00am

Your article contains significant flaws that misrepresent Chinese criminal and lawless aggressions against other claimants in the dispute:. All signers of the UNCLOS, all disputants based their claims on the that law while China claims 90% of South China Sea, using vague 9 dash map.. China gains most of its possessions by forces: attacking Vietnam (Paracel 1974 and Spratly 1988, killing over 100), the Philippines (Mischief 1998 and Scarborough 2012). No other claimant ever uses forces.. Per UNCLOS, 1st discovery or ancient history (especially when China can't produce documented proof), are not acceptable for sovereignty claim unless accompanied by administrative control. Vietnam not only, can produce the Nguyen dynasty's documentations to prove continuous administrative control from 1,674 until displaced by China in 1974, but there exists today a village of 30,000 descendents of naval soldiers who served in these annual patrols.